This chapter reviews the draft High Sea Treaty (draft HST) and the on-going deliberations and proposals in the different aspects of the document. With the aim of identifying the potential post-ratification challenges that may be faced in the implementation of the draft HST, this chapter critically reviews the proposals for dispute resolution by various stakeholders. This is done primarily by reviewing the UNCLOS system, which is directly referenced in the Draft HST. As regards the debate on the appropriate forum, the chapter analyses the proposal to adopt the International Tribunal on the Laws of the Sea (ITLOS) and other alternative propositions.
TopIntroduction
It has been almost two decades since the initiative aimed at establishing a legal regime for the blue economy commenced under the auspices of the United Nations. Over this period, ideas and opinions have congealed into searching questions, deliberations, and draft provisions. Moreover, as the second draft High Sea Treaty (HST) was published in 2019, what might have seemed a mere dream at the inception appears to be gradually taking shape and is likely to come to fruition in the very near future. Moreover, despite the covid hiatus, negotiations got back into full swing in 2021.
The perceived need for a firmer global governance regime for Areas Beyond National Borders (ABNJ) stems from the inadequacies of the United National Convention on Laws of the Sea (UNCLOS) to protect against undue exploitation of the marine commonwealth. For example, though Article 192 of UNCLOS provides that “States have the obligation to protect and preserve the marine environment”, this provision does not adequately challenge perceived excesses of others in areas of the sea which are beyond the legally recognised borders of any individual state. Further, Article 194(5) of UNCLOS requires that “measures taken shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” Yet, taking such measures unilaterally and without the support of a global initiative such as the Conference of Parties (COP) would seem too risky.
It is however not uncommon for initiatives to start with such laudable goals but end up with a tamed instrument or create an ineffectual mechanism perhaps due to political compromises. This underscores the importance of analysing the progress of the HST negotiations. This chapter will review draft HST and the on-going deliberations and proposals in the different aspects of the document. A larger section of this review is focused on the proposed dispute resolution mechanism.
The chapter is divided into three parts. Part 1 explains the historical development of the Law of the Sea, particularly the initiatives towards the blue economy. Part 2 addresses the institutional arrangement, ‘package deal’ as well as providing a review of the dispute settlement system. This is followed by the recommendations and conclusion in part 3.